Thursday, June 9, 2016
Sometimes we run into stories that really really are sad. This story in the New York Times is sad. Imagine being old and homeless, whether recently homeless or homeless for a long time. Think about the struggles one has in being homeless. Compound those struggles with the challenges faced by someone who has mobility issues or physical problems identified with being older. Old and on the Street: The Graying of America’s Homeless is an in-depth story that ran on May 31, 2016 and notes [t]he emergence of an older homeless population is creating daunting challenges for social service agencies and governments already struggling to fight poverty.
They lean unsteadily on canes and walkers, or roll along the sidewalks of Skid Row here in beat-up wheelchairs, past soiled sleeping bags, swaying tents and piles of garbage. They wander the streets in tattered winter coats, even in the warmth of spring. They worry about the illnesses of age and how they will approach death without the help of children who long ago drifted from their lives.
Homelessness is not just an issue for elders, but it is an issue that is growing since all of us age. "The homeless in America are getting old... There were 306,000 people over 50 living on the streets in 2014, the most recent data available, a 20 percent jump since 2007, according to the Department of Housing and Urban Development. They now make up 31 percent of the nation’s homeless population."
There are the "recently" homeless some of whom lost jobs and others who can't afford a home on fixed-income, and then there are the long-term homeless.
Many older homeless people have been on the streets for almost a generation, analysts say, a legacy of the recessions of the late 1970s and early 1980s, federal housing cutbacks and an epidemic of crack cocaine. They bring with them a complicated history that may include a journey from prison to mental health clinic to rehabilitation center and back to the sidewalks.
The article notes the incidences of homelessness is somewhat geographic and is rising in the larger metropolitan areas. The article features interviews with several elders in California who are homeless.
How do cities respond to the challenges of individuals who are homeless, and especially those elders who are homeless? "The challenges faced ... have forced advocates for the homeless and government agencies to reconsider what kinds of services they need: It is not just a meal, a roof and rehabilitation anymore."
Assign this article to your students and ask them to create a plan for their city to provide services. It should be an interesting class discussion.
Florida State Law Professor (and friend) Marshall Kapp has a new article out, and my recent post "He Died with Guns in His Closet" triggered him to share it with us. Marshall tackles the challenging topic of "The Physician's Responsibility Concerning Firearms and Older Patients," with thoughtfulness and candor.
Professor Kapp opens with observations and predictions about the potential for Americans to continue to own firearms as they age, even if they have declining cognition. He writes:
In the general population, the presence of firearms in the home is positively associated with the risk for completed suicide and being the victim of homicide. It is well-documented that “[g]un ownership and availability are common among the elderly”and that the rate of use of guns in suicides and homicides by older Americans is significant. Firearms, along with falls and motor vehicle accidents, cause the most traumatic brain injury deaths in the U.S. for people over age 75.
Mental illness has been found to be strongly associated with increased risk of suicide involving firearms. The disproportionate incidence and prevalence of cognitive and emotional disorders such as dementia, mild cognitive impairment, and depression--often presenting themselves simultaneously and exacerbating each other--among older persons has been identified clearly. However, many persons with such disorders do not receive a formal clinical evaluation for those issues. Age-associated decline in health status, in combination with other factors, is a risk factor for dementia.
Professor Kapp examines state laws and the collective role of the medical profession regarding firearms as a public health matter, including specific ideas about what might be an individual doctor's "duty to inquire about or report on access to weapons for a patient who demonstrates cognitive changes," and the potential for any such "duty" to impact patient choices about treatment. For example, he reports:
Under current law, physicians, with the possible exception of those practicing in Florida, have latitude to act according to their own discretion when it comes to questioning their patients about guns in the home in this context. According to a coalition of leading health professional organizations and the ABA, physicians are able to intervene with patients whose access to firearms puts them at risk of injuring themselves or others. Such intervention may entail speaking freely to patients in a nonjudgmental way, giving them safety-related factual information, answering patients' questions, advising them about behaviors that promote health and safety, and documenting these conversations in the patient's medical record (just as the physician would document conversations with their patients regarding other kinds of health-related behaviors).
On free speech implications, he writes:
The courts thus far are split in their responses to First Amendment challenges to compelled medical speech brought by physicians qua physicians in their role as patient fiduciaries or trust agents (as opposed to claims brought by physicians seeking protection in their capacity as ordinary citizens). Nevertheless, there is a strong argument for requiring that state laws compelling particular speech by physicians in their physician role be examined under at least a strict scrutiny standard.
And to further whet your appetite for reading the full article, in his conclusion, Professor Kapp advocates for certain changes in state law, including:
State statutes should authorize physicians to inquire of and about their older patients regarding patient access to firearms in the home and to counsel the patient, family members, and housemates about firearms safety, up to and including recommending that firearms be kept away from the patient. However, the states should not enact legislation that positively requires the physician to make such inquiries and engage in counseling, although states should consider a tort standard of care evolving through the common law in a direction that imposes an affirmative obligation on the physician to inquire and counsel.
The full article appears in the Spring 2016 issue of the Kansas Journal of Law & Public Policy.
June 9, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, June 8, 2016
A recent New York Times article sheds light on a frequent topic I've encountered in my own research on the convergence of elder law, contract law, and nonprofit organizations law: when will a nonprofit nursing home or similar senior living operation be "allowed" to convert or sell-off to a for-profit operation? And what if the "real" plan is to convert to an entirely new type of for-profit operation?
The potential for conversion appears to be the heart of a dispute over two nonprofit nursing homes in Manhattan, where State and City authorities are seeking to prevent their purchase by a for-profit company known as Allure Group. From the New York Times:
Citing misrepresentations and broken promises, the New York State attorney general’s office is seeking to prevent the purchase of two nursing centers by a company that was involved in transactions that put a Manhattan nursing home in the hands of luxury condominium developers....
“Allure made clear and repeated promises to continue the operation of two nursing homes for the benefit of a vulnerable population — promises that proved to be false,” said Matt Mittenthal, a spokesman for the attorney general, referring to Rivington House and a nursing home bought by Allure in the Bedford-Stuyvesant section of Brooklyn, which were closed within a year of a court petition’s being filed. “Until we conclude our investigation, we will object to Allure buying additional nursing homes.”
In New York, any nonprofit seeking to sell its assets must petition a state court for approval; the attorney general reviews all such requests and can object if there are grounds to do so. The court has the final say....
The Office of Inspector General issues regular reports to Congress, and the most recent report indicates that for the period of October 1, 2016 to March 31, 2016, the total amount of expected recoveries arising from allegations of healthcare fraud was $2.77 billion. That number is "up" by a billion dollars over the first half of fiscal year 2016.
Hopefully none of the readers of this blog have ever been a victim of a consumer scam, had their identities stolen, or know someone who has been a victim. That said, it is unfortunately likely that we all know someone who has been a victim of a scam. But there is good news on an international front regarding a scam that required victims to send money in order to claim their "winnings".
An article about efforts from U.S. and Dutch law enforcement efforts explain that FIOD and US DoJ conduct simultaneous operations against worldwide multi-million euro fraud with false letters. The article explains Dutch law enforcement is seizing mail from 300 mailboxes and is investigating 6 companies. At the same time DOJ filed suit "against two of the suspected companies and one director in the Netherlands, on behalf of hundreds of thousands of victims." Here's how this scam worked
[T]he main suspects sent millions of letters to people in the United States, Great Britain, Switzerland, Italy, France, Japan and many more countries. In the letters, addressed to people personally, the recipients were made to believe that they had won an award in the amount of money or a check, which they had not claimed yet. Another example was that the sender of the letter intended to give money to the recipient as an act of charity. In addition, letters were sent which stated that the recipient was a guaranteed winner in a lottery. To be able to transfer the money to the recipient, the latter had to send a cash amount of between 20 and 45 euro or a cheque, each time to a mailbox in the Netherlands.
In various letters, approximately 300 different mailbox numbers in the Netherlands were mentioned. Allegedly, the six suspected Dutch companies, which are the subject of the FIOD-investigation manage a large part of the mailboxes, empty them and process the mail. Presumably, the companies were allowed to keep part of the money as payment for services rendered, but the larger part of the money was transferred to bank accounts, which allegedly belonged to the main suspects of the fraud.
Tuesday, June 7, 2016
John Oliver, in his typically over-the-top, but still informative manner, focuses on the industry of debt collection and how it can be especially troublesome for older adults. Indeed, when I was running an Elder Protection Clinic for Dickinson Law, a significant percentage of our clients were struggling with "old" debts, often connected to health care costs, and were dealing with aggressive attempts to recover what has come to be known as "zombie debt." One woman interviewed about $80k in debt arising out of denial for insurance coverage for her elderly husband's hospitalization for breathing problems, describes her fear and frustration after a lifetime of working and saving. She asks, "Is this how my life is going to end?"
Our thanks to Karen Miller, Esq., in Florida, for sending this link.
We've reported earlier, including here and here, about recent financial and management issues at a Tampa, Florida continuing care retirement community that operates under the name of University Village. The latest event is the May 31, 2016 order of an administrative law judge that would uphold the decision of the Florida Agency for Health Care Administration to revoke the license for operation of a skilled nursing facility at University Village..
Many of the concerns appear to focus on the alleged action (or inaction) of an individual, John Bartle, who is described as holding various titles in the company that controls the CCRC's operations. At one point, the Administrative Law Judge made clear his view on Bartle's testimony:
The letter and the email reveal Mr. Bartle’s view that deadlines established by regulatory authorities performing the duties imposed on them for the protection of the public by the Legislature are not significant. This disregard, if not disdain, for the statutes and rules governing nursing home services and the enforcement of them is patent in the letter and e-mail, Mr. Bartle’s dismissive testimony about the shifting relationships of the various entities, his demeanor when testifying, and his evasive manner of answering questions when testifying. For these reasons, Mr. Bartle’s denial of the March 3 letter and much of his uncorroborated testimony are not accepted as credible.
My thanks to Karen Miller, Esq. for sharing this unusual ruling.
As Tropical Storm Colin pounds through Florida on its way northeast, it is a good reminder to all of us to have a disaster plan in place. Although the type of disaster may be somewhat geographic, a disaster plan is especially important for elders and individuals with special needs. Here are some links to helpful websites with information about disaster planning for elders and individuals with special needs.
Monday, June 6, 2016
The National Consumer Law Center, working in cooperation with the Administration for Community Living and the National Legal Resource Center will host a free webinar on Financial Frauds and Scams Against Elders: Government Responses and Resources on Wednesday, June 15, 2016 from 2 to 3:30 p.m. (Eastern Time). The presenters are Naomi Karp, Consumer Financial Protection Bureau and David Kirkman, Consumer Protection Division for the North Carolina Department of Justice.
This webinar will examine the fraud and scams aimed at elders, the traits that make elders vulnerable, and state and local government responses. This webinar will also discuss the Consumer Financial Protection Bureau's (CFPB) recent Advisory and Recommendations to financial institutions on preventing and responding to financial exploitation, as well as other CFPB resources available to attorneys, advocates and service providers.
On-line registration is required, but it looks like you can register at the last minute, although there is a maximum limit on the webinar -- 3,000 attendees!
Justice in Aging (formerly known to many of us as the National Senior Citizens Law Center) covered a timely and important topic in their May, 2016 Issue Brief. Voluntary Means Voluntary: Coordinating Medicaid HCBS with Family Assistance was authored by Eric Carlson, well know nationally for his work regarding residents of long term care facilities. The issue brief runs 8 pages. Here is the executive summary:
When an older adult can no longer can live independently, and is eligible for Medicaid, he or she often qualifies for home and community-based services (HCBS) that enable the individual to stay at home, rather than move to a nursing facility or other health care institution. The same is true for persons with disabilities. HCBS are provided under a service plan; under federal Medicaid regulations effective since March 2014, those service plans cannot compel unpaid assistance by family members such as adult children.
As illustrated by Medicaid hearing decisions from Florida, however, state Medicaid programs (frequently through managed care organizations) often compel unpaid assistance from family members. The managed care organizations (MCOs) authorize service levels with the presumption that family members should be providing a certain level of personal care assistance. This leads to a lower level of Medicaid-funded service hours, which in turn requires family members to provide assistance to cover the service gap.
One problem in Florida is a "medical necessity" definition that denies Medicaid-funded services to the extent that those services are provided for caregiver convenience. This definition has been cited by MCOs and hearing officers to justify reduced levels of services, even when the caregiver’s "convenience" is his or her need to hold employment outside the home. Furthermore, twelve other states also have a similar "caregiver convenience" provision in the state’s Medicaid medical necessity definition.
In Florida and across the country, Medicaid beneficiaries and their advocates should address this problem. Florida advocates have made some progress in this area, and the state now agrees that service authorizations should respect a family caregiver’s outside employment. The Florida experience suggests the type of advocacy that could and should be pursued in Florida and other states. In individual service requests and appeals, beneficiaries and advocates should forcefully assert the voluntariness requirement of the federal service planning regulations. On a systemic level, advocates should argue for the removal or revision of "caregiver convenience" provisions, and advocate for service authorization procedures that explicitly incorporate the voluntariness requirement.
This issue brief is a "must read" for all elderlaw profs, attorneys and other advocates. A pdf of the issue brief is available here.
Friday, June 3, 2016
"He Died with Guns in His Closet." That's the provocative (and effective) title of an upcoming continuing legal education program (3 credits) in Pennsylvania. The half-day Pennsylvania Bar Institute program will be offered live in Pittsburgh on June 8, and both in-person (Mechanicsburg) and by webcast/simulcast on June 16. The program will address "new regulations for gun trusts that go into effect on July 13, 2016;" acquisition, possession disposition and transportation of firearms; how people become disqualified to interact with firearms; gun trusts; and the National Firearms Act's implications for trust and estate practitioners.
Last fall, I was at a statewide meeting of continuing care community residents in the Southeastern part of the US, and I admit I was startled when residents raised the topic of "what to do about guns" in their CCRCs.
Here's a link to the CLE details. My thanks to Pennsylvania practitioner and great estate planning adjunct professor Vicky Trimmer for alerting me both to the changes in the law and this upcoming program.
The Pew Research Center reports that for the first time in the modern era, more adult children ages 18 through 34 are living with their parents than living in other arrangements:
Broad demographic shifts in marital status, educational attainment and employment have transformed the way young adults in the U.S. are living, and a new Pew Research Center analysis of census data highlights the implications of these changes for the most basic element of their lives – where they call home. In 2014, for the first time in more than 130 years, adults ages 18 to 34 were slightly more likely to be living in their parents’ home than they were to be living with a spouse or partner in their own household.
It seems likely that this trend has long-range significance for both young adults and aging families.
Thursday, June 2, 2016
Periodically we post about an article on Social Security, and one of the hot topics of late is when to start drawing Social Security. Do you take Social Security early before you reach your full retirement age, do you wait until that magic number (66 for many) or do you delay taking Social Security to later, even age 70? When you start to claim your Social Security benefit does have ramifications. We have also seen articles about the future viability of the Social Security program.
The Wall Street Journal ran an article recently about a recently published paper on the topic. The article, Here’s How to Get More People to Delay Claiming Social Security offers a view of regarding making Social Security more viable.
Global aging paired with pension shortfalls have led many governments to raise retirement ages and cut benefits. But this approach tends to be unpopular, as demonstrated by loud protests we’ve seen over the last few years from Greece and France to Detroit and, soon, Puerto Rico.
The article explains that the authors offer this proposal to increase the solvency of Social Security by "replacing the current Social Security delayed retirement credit with a lump-sum payment would induce many people to voluntarily defer claiming their Social Security benefits, and many would work more."
In the article, the authors explain the study they conducted to see if their idea would have merit, and they explain that
What we learned from our study is that many people would be willing to claim later and work longer, if they can get the attractive partial buyout from Social Security. Additionally, many who had initially stated that they wanted their benefit as young as possible, were also most willing to delay and work longer when offered the partial buyout.
The authors explain their idea is designed to be "cost-neutral" thus not adding to the woes regarding Social Security's long term prospects. The authors also note that "incentivizing longer work lives could lead to better mental and physical health at older ages for many people, so there could be ample positive social benefits."
The authors' paper is published on SSRN. Will They Take the Money and Work? An Empirical Analysis of People's Willingness to Delay Claiming Social Security Benefits for a Lump Sum. Here is the abstract for the paper:
This paper investigates whether exchanging the Social Security delayed retirement credit, currently paid as an increase in lifetime annuity benefits, for a lump sum would induce later claiming and additional work. We show that people would voluntarily claim about half a year later if the lump sum were paid for claiming any time after the Early Retirement Age, and about two-thirds of a year later if the lump sum were paid only for those claiming after their Full Retirement Age. Overall, people will work one-third to one-half of the additional months, compared to the status quo. Those who would currently claim at the youngest ages are likely to be most responsive to the offer of a lump sum benefit.
Recently I was at a dinner party with academics from across the spectrum of my university. As often happens, a group of us seated together for the meal swapped basic information about what we do in our day jobs. It was a fun group of art professors, special education specialists, and even an agricultural economist. We talked art and politics across the board. I had at first identified myself only as a professor at the law school, but during a lull in the conversation I explained my area was "law and aging" generally and more specifically the work of elder law attorneys. Ears perked up.
I had that experience that I suspect doctors have all the time. Everyone at the table had a question or story to tell of their family's recent aging issue. And as I listened, I recognized a common theme among these skilled, thoughtful professionals. I kept hearing that we knew "mom" or "aunt" or "grandpa" was getting older, and we offered help, but the help we offered either wasn't enough or was rejected outright. And often, the second part of their stories involved a "crisis." A particularly poignant example was the caring granddaughter who cooked and froze two weeks of meals for her frail, housebound grandmother, only to realize that her grandmother's "little bit of confusion" resulted in her opening all of the 14 days of dinners on the very first day. It precipitated a diabetic crisis for the grandmother, as well as the loss of the majority of the food.
Over the dinner, I was surprised to find myself talking a lot about what is dementia (and does it differ from Alzheimer's) and whether it can be distinguished from "temporary" conditions that cause short term confusion. Everyone at the table was searching for answers and admitting they didn't know enough before the crisis event. And I could completely empathize, because even with some 20 years of being fairly deeply immersed in elder care issues, I am regularly surprised by some new topic or challenge in my own family.
I had good reason to think about the party conversation again while listening to WITF-FM Public Radio's Smart Talk program on June 2. The program's guests were Dr. Linda Rhodes, the former Secretary of Aging for Pennsylvania, and Joan Krechmer, a geriatric care manager and the executive director for Jewish Family Services, in York, Pennsylvania and the topic was "Caring for Mom, Dad and Kids." Lots of people calling in and writing with very specific questions, and many of the questions were triggered by both crisis events and chronic care issues.
An example of one question was from a family member who was told the family had "24 hours" to decide about a skilled nursing facility when their loved one was being discharged from the hospital. "There is barely time to do the research" the program guests were talking about. And that is true. Even though federal law imposes a protocol on hospitals about discharge notices, and even provides a mechanism for informal appeal, which if triggered properly can automatically result in more time, most people simply won't know about that short-term remedy in advance.
The Smart Talk radio program is part of a larger series of events on the topic of family care-giving, including airing of the PBS television documentary on Caring for Mom & Dad and in-person sessions at area locations to talk about advance planning and identify resources in advance of a crisis.
Linda Rhodes, the former PA Secretary of Aging has written her own book, Caring for Aging Parents: The Essential Guide.
Have a plan to retire? Know how you will spend your time? AgeWave, along with Bank of America Merrill Lynch did a study on how people spend their retirements. Beyond the Bucket List: Experience Leisure in a Whole New Way provides the highlights from the study.
Huffington Post ran two blog posts that discussed the report. New Study Uncovers the Upside of Retirement Leisure: The Freedom Zone was published on May 12, 2016 and New Study Reveals Four Distinct Stages of Retirement Leisure on May 13, 2016. The report notes that people who are retired have more free time, but transitioning from work to retirement may be a challenge for some, since, according to the report, many folks work even when they are on vacation. The report discusses emotional well-being and the value of experience over acquisition. The report also discusses the importance of saving for retirement. The report identifies "4 stages of retirement leisure" from "winding down & gearing up" to "contentment & accommodation."
To read the full report, register with Merrill Lynch to download it.
Wednesday, June 1, 2016
The latest issue of Experience, the magazine of the Senior Lawyers Division of the ABA is devoted to elder driving. Eight articles are devoted to the issue of driving. The magazine also includes articles on estate planning, technology and ethics. The entire issue is available here. Links to individual articles are also accessible from here.
Tuesday, May 31, 2016
The annual American Society on Aging (ASA) conference is scheduled for March 20-24, 2017 in Chicago. The planning committee is now accepting proposals to present at the conference. For more information or to submit a proposal, click here. The deadline for submitting a proposal is June 30, 2017.
May 31, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)
Monday, May 30, 2016
The Association for Gerontology in Higher Education's (AGHE) annual conference is scheduled for March 9-12, 2016 in Miami, Florida. The call for abstracts for one of the six themes for the conference closes at noon on June 1, 2016. For more information, click here.
It's Memorial Day. Perhaps you are sharing a picnic with family and friends. You might need a topic to spice up the conversation amid potato salad and barbecued hot dogs, right? How about this...
Recently I've been hearing from lawyers who are commenting on recent telephone calls or emails they've received from a West Coast TV promoter, inquiring as to whether they have clients who might be interested in appearing on a new television reality show. Or, maybe the lawyer would want to participate? Here's a description of the proposed show from one of the lawyers who was contacted by a rep of the show:
"It will feature family members disputing who will inherit heirlooms, historical artifacts, or valuable collections. The show will provide a professional mediator free of charge to help the family members resolve the dispute."
I guess I shouldn't be surprised. We've had some 20 seasons of "Judge Judy" and her brethren. I have a vague memory, going back to childhood, of an early iteration of "Divorce Court" -- with lots of shouting. While living in the U.K., I used to occasionally catch a show about searches for missing heirs and another about family confrontations with "hoarders." (And oh how sad that last one was.) So, I guess it isn't a huge jump to a show that arguably sensationalizes family fights over old family "stuff." Perhaps it is even a logical next step from Antiques Roadshow, the hugely popular, and fairly dignified, PBS program.
By coincidence, just as I had finished typing the above paragraphs, I received my own communication from a developer of the proposed show. Turns out that the show is pitched as a "bigger" concept than just estate disputes. Mark Dalbis, from Atlas Media Corporation, and who seems like a nice guy in his email, writes:
Friday, May 27, 2016
Robert A. Mead, with many years of experience as a law librarian at the University of Kansas, the University of New Mexico and the New Mexico Supreme Court, and now serving as the Deputy Chief Public Defender for New Mexico, recently offered his take on claims made by family members and third-parties under state "filial responsibility" laws. His article, "Getting Stuck with the Bill? Filial Responsibility Statutes, Long-Term Care, Medicaid, and Demographic Pressure," appears in the Elder Law Advisory published by Westlaw in May 2016 (and apparently available by subscription only). He tracks the demographics of aging in the U.S. and surveys cases from Pennsylvania, North and South Dakota. Based on research, Rob predicts:
The doubling of the number of elders in society will require a substantial increase in Medicare and Medicaid funding especially if a significant percentage of them are indigent in their last years. Without this increase, filial responsibility statutes and Medicaid estate recovery will likely be used by states to address shortfalls in Medicaid funding. . . . Even without state authorities using filial responsibility statutes to seek Medicaid reimbursement, they will continue to be raised in related contexts. When siblings spar over the medical debts incurred by their deceased statutes and the effect of these debts on the probating of estates, filial responsibility becomes a complicating factor such as in Eori, Pittas, and Linderkamp cases. More insidiously, long-term care facilities are beginning to use filial support statutes to seek reimbursement for debts without waiting for resolution of whether the elder was eligible for Medicaid, as in Randall and Pittas. In some situations it will be financially advantageous for facilities to litigate against heirs rather than to settle for lower Medicaid rates. As the case law continues to develop and the demographic crisis grows, look for these novel uses of filial responsibility statutes to continue and become mainstream. It is incumbent upon lawyers representing clients in states with such statutes to plan and draft accordingly.
It is fun for me to see that Rob Mead, a former student from my own days at the University of New Mexico School of Law, has, entirely independent of my influence, kept his own eye on law and aging policy issues.